The essential difference
between the state of exception and sovereignty was established by Carl Schmitt
in his famous book “Political Theologie”. He define sovereign as “he who decides
on the state of exception”. Though, there is no theory of the state of exception
in the public law but Jurists considered it as genuine judicial problem
especially on the Maxim that “Necessity has no law”. Basically, the state of
exception is based on this ancient necessitas legem non habet (Necessity has no
law) that affirms that “it is the state of necessity on which exception is
founded. On the other hand, it has juridical form and it is difficult to define
this particular concept that has limit between Politics and law. Moreover,
according to precise opinion, the state of exception constitutes a point of
imbalance between public law and Political fact. The exceptional measures derive
their legitimate roots from the political crisis like civil war, insurrection
and resistance. For instance, the force disappearance of people from Pashtun
belt and Baloch belt, which states considers as the necessity (Brutal indeed,
the so called Modern state). In contrast, the state of exception is not legal in
the juridical context (because it opines the Fair trial before the Civil
Courts). Likewise, if the state courts laws employ exception that is the
suspension of law itself. In a broader context, this particular concept falls
between the Public law and political fact and between the Juridical order and
Life (Right) of a Common man (Between Law and the living being).
As an Illustration, the main pinpoint that makes the concept of state exception”
more difficult is its association with the Civil war, insurrection and
resistance. Because under the condition of civil war, the state often acts
politically and exceptionally that justifies its actions in terms of immediate
response to the most internal conflict. This is what gives birth to a new
concept of “Legal Civil War”, what Pakistan Boys have waged on fragile Pashtoon
and Baloch people.
Note: When Hitler came to Power in 1933, he suspended the Weimar Constitution
concerning personal liberties with the proclamation of decree for the protection
of people and state. Thus, in this way the Third Reich became a state of State
of Exception.
In this context, the modern totalitarianism (security state) can be defined, as
the establishment , by means of the state exception, of legal civil war that
allows the physical elimination of not only political adversaries but the entire
categories of citizen, who for some reasons cannot be integrated into political
system (Baloch and Pashtoons are the case studies in Pakistan). This is how, the
voluntary creation of the state of emergency is established and has by become
the mainstream practice of the Contemporary States, including the so-called
democratic states (Pakistan). In much broader sense, it has become a “Global
Civil war”, the state of exception has become the focal point of the
contemporary politics of the Modern states.
In the above context, the state of exception appears as threshold of
indeterminacy between democracy and absolutism. Moreover, there are two types of
state of exception: the real of exception and the fictitious state of exception.
In the Anglo-Saxonian Sense, it is known as Fancied Emergency (For Instance FCR
in Tribal Areas during Colonial Rule) and in the Nazian sense, it is known as
“Willed state of exception” (Racial courage). Likewise, in the context of bio
political(Michel Focault’s Biopolitics) significance of the state of exception
as the original structure in which the law surpasses living beings by means of
its own suspension emerges from the “Military Order” (Just like in Pakistan).For
instance, US presidential authorization of “Indefinite detention and trial by
Military Commissions, on November 13, 2001 and the so called Patriot act issued
by the US senate on October 26, 2001, allowed attorney General to “take into
Custody” any alien (Subjects) suspected of activities that endangered the
national security of the United States of America.
In a nut shell, the concept of State of exception is not a special Kind law (Law
of War) rather it is the suspension of the Judicial order. Initially, this
theory was justified by the German conception of “state of Necessity” then by
Italian and Anglo-Saxon Conception of “State of siege” and “Martial Law”.